Legal Documents

OpenMetal, Inc.
Universal Terms of Use

Last Updated: January 1, 2023

IMPORTANT: THESE TERMS AND CONDITIONS CONTAIN A CLASS ACTION WAIVER. DEPENDING ON THE JURISDICTION, THAT SECTION MAY NOT APPLY.

If you are attempting to access the OpenMetal Cloud Services as a customer of an OpenMetal Cloud reseller, the terms below do not apply to you, and your agreement with your reseller governs your use of the OpenMetal Cloud Services.

 

If you signed an Order Form directly with OpenMetal for OpenMetal Cloud Services, additional terms apply to you as stated in the Order Form, and the additional terms and conditions listed in the Order Form govern your use of the OpenMetal Cloud Services.

 

  1. Terms and Conditions and Related Agreement and Policies; Modifications.
    1. These online OpenMetal, Inc. Universal Terms of Use are an agreement which sets forth the terms and conditions (collectively, the “UToU”) governing access to and the use of the products, services, website (www.openmetal.io) and/or mobile-optimized versions of the Website to which the UToU are linked (collectively, the “Website” and/or “Products”), all of which are owned or operated by Company, its parent, subsidiaries, affiliates and/or brands, by a Website visitor, user and/or the party set forth in the related Company order form (“User”), which order is incorporated herein by this reference (together with any subsequent order forms submitted by User to Company, collectively, the “Order”).
    2. The term “Website” also includes and is not limited to any subdomains of the Website and any content, code, data, services, products, features or functionality made available from or through the Website. 
    3. Company and User may be individually referred to herein as a “Party” and together the “Parties.”
    4. The UToU are effective on the date User first accessed the Website or date Company signed the Order, whichever is earlier.  
    5. User signifies that User has read, understands, acknowledges and agrees to be bound by the UToU, along with Company’s Acceptable Use Policy (“AUP”) and Privacy Policy (“Privacy Policy”), and Order (if applicable), all of which are incorporated herein by reference. The UToU, AUP, Privacy Policy and Order (if applicable) shall collectively be referred to as the “Agreements.”  In case of a conflict between an Order or term within the AUP,  Privacy Policy or UToU, the terms of the UToU shall control.Unless otherwise set forth in the Order or the UToU, AUP or Privacy Policy, the capitalized terms contained within those documents carry the same meanings whenever used in the UToU.
    6. The Website and Agreements may be modified at any time by Company upon posting to the Website.  Any such modifications shall be effective immediately.  A User’s access and/or use of the Website after any modifications to the Website or Agreements have been made shall constitute such party’s acceptance of each as of the “Last Updated Date” stated above.
  2. Ownership. Unless otherwise stated, all content included on the Website is and shall continue to be the property of Company or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights.  Any copying, redistribution, use or publication of any such content or any part of the Website is prohibited, except as expressly permitted in the Agreements. Under no circumstances will User acquire any ownership rights or other interest in any content by or through use of this Website. The term OPENMETAL and the OPENMETAL logo, and others are either trademarks or registered trademarks of Company. Other product and company names mentioned on the Website may be trademarks of their respective owners. 
  3. Intended Audience. The Website and Subscriptions are intended for adults only. The Website and Subscriptions are not intended for any individual under the age of eighteen (18). 
  4. Website Use.  Company grants User a limited, revocable, nonexclusive license to use the Website solely for User’s own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use.  User agrees not to copy materials on the Website, reverse engineer or break into the Website, or use materials, products or services in violation of any law.  The use of the Website is at the discretion of Company and Company may terminate User’s use of the Website at any time. 
  5. Compliance with Laws. User agrees to comply with all applicable laws regarding User’s use of the Website. User further agrees that information provided by User to Company is truthful and accurate to the best of User’s knowledge.
  6. Data Privacy and Protection. Access and use of the Website involve the processing of personal data about visitors, users and/or User. Company’s Privacy Policy and Data Processing Addendum (“DPA”), which is hereby incorporated by this reference, as applicable, relate to to personal data and/or personal information, provide User contractual assurance that Company has implemented mechanisms to ensure the processing of such data and information, including transfers of personal data from the European Economic Area to a third country, and complies under applicable data privacy laws. Company reserves the right, and User authorizes Company to use and assign all information regarding User’s Website use and all information provided by User in any manner consistent with the Privacy Policy. For the purposes of the DPA and the Standard Contractual Clauses attached to the DPA (when and as applicable) Users (and applicable affiliates) are considered the Data Controller or Data Exporter.  
  7. Conduct Towards Company. Company will protect the health, safety, and welfare of Company’s employees. Unprofessional conduct, threats, abusive language (including, but not limited to, disparaging remarks regarding the sex, race, religion, or sexual orientation of Company’s employees) and/or anything that could be considered hate speech in the course of User’s communications with Company will not be tolerated. Such conduct may result in the termination of communications and repeated offenses may result in the suspension, cancellation or termination of access and use of the Website and cancellation of an Order (if applicable, and in such instance without any refund to User, as determined in Company’s sole and absolute discretion). 
  8. Trademark and/or Copyright Claims. Company supports the protection of intellectual property. If User would like to submit a trademark or copyright claim, please visit Company’s Legal Inquiries page.
  9. Links To Third-Party Websites. The Websites may contain links to third-party websites that are not owned or controlled by Company. Company assumes no responsibility for such content, terms, and conditions, privacy policies, or practices of any third-party websites. In addition, Company does not censor or edit the content of any third-party website. By using the Websites, User expressly releases Company from any and all liability arising from User use of any third-party website. Accordingly, Company encourages User to be aware when User leaves the Website to review the terms and conditions, privacy policies, and other governing documents of each other website that User may visit. 
  10. Feedback. User understands and agrees that Feedback (as defined below) provided by User shall not be treated as confidential information (unless Company so agrees in writing), and nothing in the UToU or in the Parties’ dealings arising out of or related to the UToU will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting User. “Feedback” refers to any suggestion or idea for improving or otherwise modifying the Subscriptions, Documentation and Specifications and/or any of Company’s products or services. 
  11. Disclaimer of Representations and Warranties. THE INFORMATION ON THE WEBSITE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. USER AGREES THAT USE OF THE WEBSITE IS AT USER’S SOLE RISK. COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT USER’S JURISDICTION DOES NOT ALLOW LIMITATIONS ON WARRANTIES, THIS LIMITATION MAY NOT APPLY TO USER. USER’S SOLE AND EXCLUSIVE REMEDY RELATING TO USER’S USE OF THE WEBSITE SHALL BE TO DISCONTINUE USING THE WEBSITE. 
  12. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING DAMAGES FROM LOSS OF BUSINESS, LOST PROFITS, LITIGATION, OR THE LIKE), SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN ANY WAY RELATING TO THE WEBSITE, USER’S USE OF THE WEBSITE, OR THE CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USER’S SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE AND/OR CONTENT IS TO CEASE USE OF THE WEBSITE.  User may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply to User, the exclusions or limitations in the Agreements that directly conflict with such laws may not apply to User. 
  13. Indemnification. User agrees to indemnify, defend and hold Company and its partners, employees, and affiliates, harmless from any liability, loss, claim and expense, including reasonable attorney’s fees, related to User’s violation of the Agreements or use of the Website. 
  14. Trial and Class Action Waiver. PLEASE READ THIS CAREFULLY IF USER IS A RESIDENT OF THE UNITED STATES OF AMERICA. IT AFFECTS USER’S LEGAL RIGHTS
    1. Waiver of Jury Trial. USER HEREBY WAIVE USER’S CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. In the event any litigation should arise between the Parties in any state or federal court in a lawsuit, USER WAIVES ALL RIGHTS TO A JURY TRIAL.
    2. Waiver of Class or Consolidated Actions. USER UNDERSTANDS AND AGREES ALL CLAIMS AND DISPUTES WHICH MAY BE MADE WITHIN THE SCOPE OF THE AGREEMENTS MUST BE LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.  USER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THE AGREEMENTS, THE PARTIES ARE EACH WAIVING TO PARTICIPATE IN A CLASS ACTION. 
  15. General Terms.
    1. Headings. The headings herein are for convenience only and are not part of the Agreements.
    2. Limitation of Actions. No action, regardless of form, arising by reason of or in connection with the Agreements may be brought by either party more than one (1) year after the cause of action has arisen.
    3. Force Majeure.  No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of the UToU to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, epidemics, pandemics, or other causes beyond the performing party’s reasonable control.
    4. Severability.  To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of the UToU invalid or otherwise unenforceable in any respect.  In the event that a provision of the UToU is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the UToU will continue in full force and effect.
    5. No Waiver.  Neither Party will be deemed to have waived any of its rights under the UToU by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of the UToU will constitute a waiver of any other breach of the UToU.
    6. Choice of Law and Jurisdiction. The UToU will be governed solely by the internal laws of the State of Delaware, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws.  The Parties consent to the jurisdiction of the federal and state courts of Kent County, Delaware.
    7. Attorney’s Fees and Costs.  Claims for attorney’s fees and other costs (including expert fees) are recoverable by the prevailing party in any legal action associated with the enforcement of the UToU, or the collection of any amounts due under the UToU.
    8. Entire Agreement; Amendments. Unless otherwise stated in the Order (if applicable), the Agreements and documents incorporated herein by reference, supersedes all prior discussions, negotiations, and agreements between the Parties with respect to the subject matter hereof, and the Agreements (unless specifically stated therein) constitute the sole and entire agreement between the Parties with respect to the matters covered hereby. No additional terms or conditions relating to the subject matter of the Agreements shall be effective unless approved in writing by an authorized representative of User and Company. 
    9. Translation. The Agreements are written in English (USA). Company may, but is not obligated to, translate the terms into other languages. To the extent any translation is provided, it is provided for convenience purposes only, and in the event of a conflict between a translated version of the Agreements and the English (USA) version, the English (USA) version will control. Where a translated version is required to be provided by law such is to be considered binding in which both language versions shall have equal validity; User acknowledges that User has reviewed both language versions and each is substantially the same in all material respects; and in the event of any discrepancy between any versions, the translated version may prevail.
    10. Termination. Subject to an Order (if applicable), Company may terminate the Agreements at any time, with or without notice, for any reason.
    11. Company Contact Information. If User has any questions about the Agreements, please contact Company by email or regular mail at the following address: OpenMetal, Inc., Attn: Legal Department, 555 S. Independence Blvd., Virginia Beach, VA 23452, legal@openmetal.io. By submitting a request User agrees to the terms of the Privacy Policy regarding User’s personally identifiable information.